Right to Die Is Still a Painful Legal Issue

It is time, her family says, for Anna Hirth to die.

Hirth, 92, lies in a coma in a La Mesa nursing home. Her condition has changed little since February, when she choked on food and suffered brain damage before she could be resuscitated.

For 10 years before that, the once-vivacious woman--a domineering powerhouse described by her sister as “a typical Jewish mother�--had been deteriorating physically and mentally, a victim of old age and Alzheimer’s disease.

A month ago, her lone surviving daughter, Helen Gary of Calabasas Park, asked the San Diego County Superior Court to put an end to what little was left of her mother’s life. Aided by “right-to-die� advocate Richard Scott, an attorney and physician, she is seeking a court order directing Hirth’s doctor to remove the feeding tube that is keeping the woman alive.

“If there were the slightest possibility of my mother being able to stay in her home, even with her companion-housekeeper, to be able to rise in the morning and see the sunshine and look out in the backyard and see the grass growing--if there were the slightest chance of that, I would say by all means do anything possible to keep her alive and make her better,� said Gary, 62. “But there is no hope of that.�

Dr. Allen Jay, Hirth’s physician for the last seven years, does not think it is his place--or Gary’s--to bring about the old woman’s death.

Cutting off Hirth’s life-support systems is not appropriate, medically or ethically, he says. Her condition may be slightly improving, he says.

Above all, Jay says, Gary may not be in a position to know what her mother would have wanted under such circumstances. And he certainly doesn’t know. So Jay would rather err on the side of caution.

No Going Back

“If you’re wrong, you can go back and do what’s appropriate,� he said. Not so with a decision to pull the plug. “Once you do that,� Jay observed, “you’re in no position to go back.�

So far, Superior Court Judge Milton Milkes is lining up with Jay against a precipitous move to let Hirth die.

He refused last week to issue an order for the removal of Hirth’s feeding tube. Instead, he said he would appoint a lawyer to represent Hirth and hold a full-scale trial early next year to try to determine what fate she would choose for herself if she were able.

“When life is the price,� Milkes ruled, “a measured delay is no vice.�

The Hirth case is not unique. Ten years after a court allowed the parents of Karen Ann Quinlan to withdraw their daughter’s artificial life support--and more than 50 years after a Chicago lawyer wrote the first “living will�--patients, families, doctors and medical institutions are still battling over the issue of the right to die.

Judges have firmly established in the last decade the principle that patients have veto power over their medical treatment, even if their refusal to consent to care means their certain death. In principle, too, family members have cemented their power to make life-and-death decisions for patients no longer able to speak for themselves.

So entrenched is the right-to-die concept that health care experts and ethicists estimate that as many as 90% of the decisions to terminate a patient’s life-sustaining care are made informally--at the bedside, with the agreement of the patient, family and physician; or, less frequently, with the arbitration of hospital officials or ethics committees.

But understanding and acceptance of the right to die is far from universal, either among health professionals or the public. And cases like Anna Hirth’s continue to arise where there is doubt whether legal and ethical standards stretch far enough to allow a life to be brought to an end.

“The society has not settled on this issue,� said Dr. Joanne Lynn, a professor specializing in geriatrics at George Washington University who was assistant director of a presidential commission that studied ethical problems in medicine. “And I think we’re in for a period of substantial discomfort over it until we have settled it.�

By all accounts, Anna Hirth was a woman who liked to be in charge.

She raised two daughters and two sons and has outlived all but her youngest, Helen Gary. She has been a widow for 40 years.

For years, she lived in San Diego with her boys, Aaron and Julius Hirth. Neither married until they were well into their 50s. And they were not the only family members whose strings she pulled.

“My grandmother’s greatest joy from life was her evident feeling that she was creating and managing the circumstances around her,� her grandson, Bruce Gary of Los Angeles, said in a sworn statement filed in court.

Hirth “was a vibrant and active woman, a very controlling woman . . . who certainly knew her own mind and--almost always--got her own way,� said another grandchild, Felice Catena of Los Angeles.

When she was well into her 60s, Hirth belonged to a gym. She gave up seats on buses to “old folks� years younger than herself. She “was an extremely active woman who was a typical ‘Jewish mother,’ � according to a court statement by her 78-year-old sister, Doris Greenblatt of Desert Hot Springs.

Hirth used to volunteer at a Jewish home for the aged, recalled granddaughter Eileen Driver of Simi Valley, but she quit. “It was too hard for her emotionally to see people lingering in that environment, confined to bed and ‘waiting to die,’ � Driver said in an affidavit.

That abhorrence of incapacitation is part of the evidence Gary points to in contending that her mother would not want to be kept alive as a virtual vegetable. But there were other indications as well.

After her sons married and she moved into a senior citizen apartment complex, Hirth used to run away, complaining that she did not want to live in an institutional setting, according to Gary. And when her own mother was dying, Hirth said it would be “shameful� to keep her alive in a nursing home.

At one point, Gary said, her mother told her, “I would rather be dead than live like that.�

Family members say they have no doubt what Hirth’s wishes would be if she could emerge from her coma long enough to speak her mind.

“If my sister could now talk and could now see and understand the helpless condition she is in, she would vigorously object,� Greenblatt said in her court statement. “She would be very disturbed and would clearly wish to reclaim her dignity and let God take her without further delay.�

Gary said: “There’s no wrestling. I know she would not want this.�

Jay has no argument with the family’s description of the kind of woman Hirth was.

“At the time I began treating Mrs. Hirth, she was a strong, domineering woman, very much in control of herself and her family,� he said in an affidavit.

But, Jay said, Hirth never once said a word to him about the kind of care she wanted in her final days. While she was competent, she did not draw up a “living will,� directing that her life not be artificially sustained if she became irreversibly ill. She did not sign a durable power of attorney, giving Gary or anyone else nearly absolute power to make health care decisions for her.

On the contrary, the doctor said, his clearest guidance was from Julius. Before he died last year, Hirth’s son “expressed to me his wish that his mother be cared for as comfortably as possible for as long as she lived,� Jay said.

Asked now to sign an order disconnecting Hirth’s feeding tube, Jay has dug in his heels. He says there is too much that he does not know.

“At this time I cannot predict the level of recovery or improvement that Mrs. Hirth will achieve,� his affidavit says. “Although I have treated Mrs. Hirth for over seven years, and had a personal relationship with two of her sons, I do not know what Mrs. Hirth’s wishes would be in this situation.�

There is too much he does know, as well.

“I do know that death is not imminent,� he said, unless he withdraws her life support. “Removal of the nasogastric feeding tube will cause Mrs. Hirth to slowly starve to death,� his statement says. “Withholding of the medications currently being prescribed could effectively cause Mrs. Hirth to slowly drown in her own secretions.�

In a brief interview, Jay drew this analogy: “Feeding a patient through a nasogastric tube is not dissimilar from feeding a quadriplegic who cannot lift his arms. You wouldn’t let a quadriplegic starve himself.�

Richard Scott is vehement in his insistence that neither Jay, nor anyone else, has the right to stand in the way of Anna Hirth’s death.

Court victories--including several won by Scott--have given patients and their families the absolute power to reject treatment and elect death, he said.

“It is recognized now. This isn’t just some nice theory of mine,� said Scott, a Santa Monica attorney and doctor probably best known for his representation of Elizabeth Bouvia, the cerebral palsy patient who earlier this year obtained an appellate court ruling upholding her right to refuse force-feeding.

“The sweep of this line of jurisprudence over 10 years, from the Quinlan decision through the Bouvia decision here in April in Los Angeles, is that patients who wish to be have the absolute authority to be in charge of their own medical care, and they can refuse anything, even if it makes the doctors unhappy,� Scott said.

While Scott insists that cases like Anna Hirth’s should not end up in court anymore, an array of parties--Jay, the Hacienda de La Mesa nursing home, the state of California and San Diego County--say there is much to distinguish the Hirth case from those that came before.

There is the doubt about Hirth’s true desires. There is the fact that she has a legal conservator, San Diego attorney James Clark, who has declined to take a position on the termination of her treatment. There is the fact that Gary stands to inherit hundreds of thousands of dollars upon her mother’s death. There is the question of whether the nursing home would face administrative penalties for not treating Hirth, and of whether the state and county can be preempted from taking action against the home if it is later determined that its actions violated the law.

“Dick Scott takes a very broad-brush approach to this case and tries to make the court and the public believe it’s like the Bouvia case, which I don’t think it is at all,� said San Diego attorney James McIntyre, who represents Jay.

“No one is questioning that the patient has the right to decline medical treatment. And also, there are obviously situations where the patient is not competent and others can make the decision for her. But those factual situations are different from the one we’re presented with here.�

In court filings, both McIntyre and J. Wesley Fry, who represents Hacienda de La Mesa, have questioned the closeness of Gary’s relationship to her mother.

They noted that Julius Hirth, who had cared for his mother, did not name Gary, his sister, as her conservator when he knew he was dying of cancer. They noted that Jay, in a deposition in the case, said he understood that the women were estranged--a claim Gary has denied. Fry pointed out the existence of a large trust fund, set up by Julius Hirth for his mother’s care, that will become Gary’s when her mother dies. Gary says she and her husband do not need the money.

The doubts raised were sufficient to convince Milkes that he could not decide the case without hearing more evidence about Hirth’s likely wishes.

In his ruling Thursday, he said he wanted to hear from San Diego attorney James Clark, Hirth’s conservator, who so far has taken no position on the termination of her treatment. Milkes said he would appoint a lawyer to represent Hirth’s interests, listen to witnesses at a trial in February or March and visit the Hacienda de La Mesa to observe Hirth’s condition.

Milkes did not rule out the possibility that he ultimately would allow the elderly woman’s feeding tube to be removed. But he said he intended to proceed at a deliberate pace.

“Intolerable pain and suffering to the patient or to the patient’s loved ones . . . may, when there is sufficient evidence, require accelerating death,� he said. “However, this severe measure presumes cautions and adequate safeguards.�

There is a bureaucratic dimension to the case as well. Fry contends that a special set of problems arises because Anna Hirth is in a nursing home.

Though nursing homes are tightly regulated by the state, he said, they have received no guidance from the California Department of Health Services as to whether they can comply with patient requests to terminate feeding or treatment. So Hacienda de La Mesa’s operators fear they could face heavy penalties for abusing or neglecting Hirth if they went along with Gary’s wishes, according to Fry’s court papers.

Scott agrees that the state has been vague about how it will view nursing homes’ conduct in right-to-die cases. In fact, he says, one of the objectives of the Hirth case--and two others he has pursued recently in Los Angeles--is to nudge the state into taking a position.

Scott said he had hoped to get an appellate court ruling affirming that nursing homes could safely abide by patients’ wishes in the case of Avis Flott, a 77-year-old left comatose after a 1979 automobile accident. A Los Angeles County Superior Court judge had OKd the removal of her feeding tube, but stayed the ruling so county prosecutors and the California attorney general’s office could appeal his order granting Flott’s doctor and nursing home immunity from criminal prosecution.

But Flott died in October before the case could be appealed. Scott filed the Hirth case about three weeks later and quickly followed that with another filing in Los Angeles. He expects that the ongoing litigation will set a precedent for other nursing-home residents.

“If we had followed the state’s lead, we wouldn’t be doing anything, and these patients’ rights to control their own medical care would simply be ignored,� he said.

State officials say Scott and other lawyers active in right-to-die litigation are ignoring the fact that guidelines for nursing homes do exist.

In March, 1985, the Department of Health Services adopted the California Hospital Assn.’s guidelines for decision-making about the termination of medical treatment, according to Paul Gould, policy chief for the division of licensing and certification.

Though Gould said he sees little reason for the state to interfere in the health world’s medical and ethical judgments, more comprehensive guidelines are being developed in deference to the nursing home industry’s desire for additional rules.

Government lawyers say it is ridiculous to think a doctor or nursing home could be punished for following a court order. But public agencies are resisting efforts to strip them of the power to make after-the-fact reviews of right-to-die cases as a way to police abuses. They want the power to act upon learning that a death is the result of bad motives or other mischief.

“The district attorney feels it’s inappropriate to grant immunity for prospective conduct, for something that hasn’t happened,� said Deputy County Counsel Paul Bruce of San Diego. “The reason is that you don’t know what’s going to happen.�

Though cases like Hirth’s and Bouvia’s and Quinlan’s grab headlines, there are far more instances in which the dying exercise their right to refuse treatment without resorting to court battles and loud rhetoric.

Concern for Dying, a New York-based group devoted to promoting the right to die, has distributed 8 million copies of the living will in the last 18 years, according to Assistant Director Gay Ingvordsen. When the group recently surveyed 10,000 of its members, 13% said they knew of cases where someone had tried to implement the terms of a living will. In three out of four of those cases, the survey found, the document was honored.

“We have many, many success stories,� Ingvordsen said. “Court should be the last resort.�

Living wills probably find their widest use in California, where the concept is recognized under the state’s Natural Death Act, said Lynn, the George Washington University professor. Even without the state’s unfinished contribution, California--especially Los Angeles County--has also been a leader in developing guidelines to help doctors, patients and families reach decisions about withdrawing life support.

“These cases needn’t go to court,� said Susan Wolf, associate for law at the Hastings Center, a New York institute specializing in medical ethics that next year will issue what promises to be the most wide-ranging ethical guidebook ever on right-to-die issues. “In fact, they should not all go to court.�

Lynn, though, warns that in spite of all the litigation already undertaken, America face an overwhelming onslaught of right-to-die cases as the ranks of the aged continue to swell and social institutions refuse to confront the problems of aging.

Little attention, she said, has been paid to the growing numbers of dying, incompetent patients who have given no indication of their wishes about being kept alive and have no relatives to speak for them.

As economic considerations become more important in medical decision-making, she wonders, how will it be determined if these individuals will live or die? Somehow, Lynn said, only the toughest cases should be funneled into courts, while a “more streamlined system� should be developed for the average case.

“What society has to come to terms with,� she said, “is that there are going to be some mistakes.�

Helen Gary, who survived breast cancer 10 years ago, wants there to be no mistake about her intentions as she grows older. Just days ago, she and her husband, William, went to a lawyer and signed documents setting out clear directions for their care in case of a debilitating illness.

“You bet we think about this,� she said last week.

But the thinking comes a little late for Gary. Having experienced an unexpected legal battle and insulting attacks on her motives, she wishes now that her mother had left a statement of her desires too.

“But who would ever think that my mother would outlive three of her children?� Gary asked. “No one ever thought it would come to this.�